The OUCH Test
A “Rule of Thumb” in HR management used whenever contemplating any employment action to maintain fairness and equity for all employees or applicants.
Key Takeaways:
Illegal discrimination is making distinctions that harm people and are based on an individual’s membership in a protected class.
OUCH is an acronym that stands for objective, uniform and application, consistent in effect, and has job relatedness.
You should use this test whenever you're contemplating any action that involves your employees.
The Human Resource Management legal environment has become significantly more complex in the last 30 years. There has been a significant number of laws enacted just in the past 10 years that affect how organizations must do business. In addition, we have grown to believe that we value diversity in the workforce much more today than in the 1960s and 1970s.
What is Discrimination?
Discrimination is the act of making distinctions or choosing one thing over another. Specifically in HR, it's making distinctions among people. So you can quickly see that managers discriminate every day. If managers don't discriminate (making distinctions or making decisions), then they're not doing their jobs.
However, we want to avoid the illegal type of discrimination. This is when a manager makes a distinction or decision based on a person's membership in a protected class. As managers, we want to avoid unfair treatment of any of our employees at all times.
The OUCH Test
The OUCH Test is a “rule of thumb” used whenever you're contemplating any employment action to maintain fairness and equity for all of your employees or applicants. You should use this test whenever you're contemplating any action that involves your employees. Ouch is an acronym that stands for objective, uniform and application, consistent in effect, and has job relatedness.
Objective
Is the action objective or is it subjective? Something that's objective is based on fact cognitive knowledge or quantifiable evidence not on personal feelings or prejudices.
Uniform and Application
Is the action being uniformly applied? In other words, if you had any action in an employment situation, are you applying that same action in all the cases have the same type?
Consistent in effect
Does the action take a significantly different effect on one or more protected groups than it has on the majority group? The Four-Fifths Rule is a test used by various federal courts, the Department of Labor, and the EEOC to determine whether disparate impact exists in an employment test. If you're out of compliance with the Four-Fifths Rule, you have not necessarily broken the law. However, you do have to investigate why you were outside the Four-Fifths parameter.
We can also look at the Six-Fifths Rule to determine the possibility of reverse discrimination. It's the same concept with slightly different numbers.
Has Job Relatedness
Is the action directly related to the primary aspects of the job in question? The word “primary” is very important and we call these factors essential functions or essential functions of the job.
Remember that the ouch test is a rule of thumb that does not work perfectly and is not a legal test by itself.